FOIA audit sparks interest, some concerns

February 3, 2002

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On Monday, Jim Wilmoth picked up The Charleston Gazette and read how the state's sheriffs and superintendents ignore the public records law.It didn't surprise him, he said recently, to read that county officials aren't as informed about the Freedom of Information Act as they should be."I was more disturbed that a superintendent of schools can pick up the phone and ask [law enforcement] to run a name through a background check," said Wilmoth, who wrote to reporters after reading a series published in the Gazette last week.Project Access, a series on the state's public records law, highlighted how well county officials - including sheriffs, county clerks, county commissioners and school superintendents - complied with the state's Freedom of Information Act, or FOIA.

The Freedom of Information Act became law in 1977. It allows any citizen to ask for and receive records from any government agency. There are exemptions. The law doesn't require that a person provide his name or a reason for requesting the records.Government officials have five business days to respond in writing to a public records request.Many county officials scored poorly in the statewide audit that was conducted by newspaper reporters from The Associated Press, the Gazette, Charleston Daily Mail and 10 other state newspapers. The reporters didn't identify themselves when they asked for the weekly crime log, the clerk's expense reports, the county budget and superintendent's contract.Readers and county officials responded differently to the articles printed in the state newspapers over several days.Reaction to Project Access has been strong, said Terry Wimmer, Shott Chair of Journalism at West Virginia University and coordinator of Project Access for the Associated Press Managing Editors Association."It's like a bucket of cold water in their face," Wimmer said. "It made them wake up and say we need to pay more attention here."Project Access prompted some county officials to take action.Greenbrier County Commissioner Steve Malcomb said he plans to teach his staff how to handle public records requests.His office denied a reporter's request for records during the audit.The reporter must have visited the county office on a day when Malcomb wasn't there, he said, because he would have willingly provided the information.A former U.S. marshal and retired police officer, Malcomb said he knows the public records law.

Several years ago, when Malcomb ran for sheriff, he asked for information about the department and was denied until he recited the FOIA law.Malcomb said he also plans to address the FOIA issue at the next county commission meeting."I'm glad you did what I call a sting operation," Malcomb told a Gazette reporter. "Even as a county commissioner, I've been denied information. I'm glad to see this story come out."In response to Project Access, the School Board Association is scheduling a training session for several county government associations on the FOIA."Since the stories have come out, there obviously seems to be a great need to train public officials [about the law]," said association director Howard O'Cull.School board members don't directly receive public records requests, O'Cull said, but the board members have a "moral responsibility to make sure their people they have elected to be superintendent know the law."

The FOIA training session will be held later this spring, after the legislative session ends, O'Cull said. He is still working out the details.Members of the County Officials Association, the Municipal League and the County Commissioners Association will attend the session, he said.West Virginia University journalism students conducted their own audit around campus. University officials were inconsistent in their responses to records requests, the audit showed. Students were often referred to the general counsel's office.Wimmer isn't stopping with the university-wide audit. His next course of action is to hold a Project Access panel on March 13.Panelists, including university President David Hardesty, Supreme Court Justice Darrell McGraw, Sheriff's Association President Jeff Woofter and a few journalists, will discuss the public's right to know and receive information from government agencies.

Ignorance or Arrogance

Readers had different reactions to various details in the Gazette articles. Many said they were happy to see the access problem to public records exposed.Hurricane resident Jim Wilmoth was most upset that a person who asked for public documents would most likely have a background check run on them.

Clay schools Superintendent Jerry Linkinoggor told a Gazette reporter that he used the FBI database to run a background check on a reporter who asked for his contract."It was real eerie and real scary," Linkinoggor said. "He came close to being escorted out of here by the sheriff."On more than one occasion, county officials ran background checks on reporters who asked for public documents.Wilmoth, a former probation officer, said he is concerned that public officials are misusing identification databases.West Virginia law states the criminal records bureau may provide information about a person to an authorized law enforcement and governmental agency if the "records are necessary in the interest of and will be used solely in the administration of official duties and the criminal laws.""I hope these violations are not ignored by those whose responsibility it is to maintain the integrity of the systems, be it the FBI or the State Police," Wilmoth said.Michael Kidd, a private investigator for several law firms, often runs into problems with county and city officials when he seeks public records for his work."It's frustrating," Kidd said. "It affects my livelihood if I don't get the documents."Kidd travels all over the state and into Ohio and Virginia requesting traffic citations, criminal records and any civil case filings for people he investigates. Kidd said he is frequently told that criminal and civil court cases are confidential.Court records are not confidential under the FOIA. On one case in Milton, Kidd had to have the attorney he was working for call the clerk."It wasn't until the attorney threatened to sue them that they said OK, he can come down and look at the records,'" he said.Kidd said he doesn't know if clerks, police officers and sheriffs deny public records because they are ignorant of the law or if they are just arrogant and think they are above the law."It should be no different than going in and checking out a library book," Kidd said about asking for public records. "But I go in there and they ask me who I am, what I want and what I want it for."The Project Access articles made it clear to Kidd that public officials need to be trained on the FOIA."I love the [news] coverage," Kidd said. "I hope it embarrassed the public officials enough to get training or to stop ignoring the law."Clay County officials had training on the public records law two years ago, said Andy Waddell, a Clay County resident and publisher of an alternative newspaper called The Communicator.Waddell said he wasn't surprised by the results published in the Gazette-Mail last week. "I have been reading the coverage. It's been wonderful," he said. "Especially the part on our superintendent and the background check. It doesn't surprise me any."In some cases, county officials don't know the law, but others may need a refresher course in FOIA, Waddell said.Waddell fights for public records, and often wins enemies in the process. But he knows the general public isn't as likely to go that far."The general public is unable to get any information. But I go right after [officials]," Waddell said. "The guy on the street should be able to come in and say I would like to know this. And the government agency should say OK, stop in later tomorrow or today and we'll have it for you.'"

What's next?

Now that journalists have performed this study, what's next?"The next step is about how we build a better awareness of the law," Wimmer said. "How do we bring it to the forefront?"WVU and the School Board Association are taking the next step by talking about the issue and training people about the law, Wimmer said."WVU isn't burying its head in the sand," Wimmer said.Eventually, Wimmer said, he wants to conduct another statewide public record audit to see whether county officials learned from their mistakes. But it will be a while before that happens, he said.Staff writer Dawn Miller contributed to this report.To contact staff writer Rachelle Bott, use e-mail or call 348-5156.